In preparing my post last night on major marijuana organizations’ reaction to the answers given by Alabama Sen. Jeff Sessions when questioned about marijuana enforcement in the states that have legalized it, I did not include the reaction from one of my favorite reformers, Tom Angell, head of Marijuana Majority. No slight intended – I just didn’t have his emailed statement handy at the time.
Angell’s analysis is similar to many in that he found Sessions’ comments on marijuana to be vague and inscrutable. Like many, Angell notes that Sessions’ is applying for the job of the top federal prosecutor, so of course he has to say that he’s going to enforce federal law. Angell reminds readers that there is nothing in Sessions’ comments to indicate he’s ready to instigate a federal crackdown on the cannabis industry.
Loretta Lynch + Barack Obama ≠ Jeff Sessions + Donald Trump
As always, Angell offers a very thoughtful analysis. However, I think he makes an analytical mistake in one respect alone by comparing Sessions’ answers to statements made by Attorney General Lynch in her confirmation.
In fact that’s exactly what the current attorney general, who serves an administration known for largely respecting state marijuana laws, did at her confirmation hearing two years ago:
“With respect to the marijuana enforcement laws, it is still the policy of the administration, and certainly would be my policy, if confirmed as attorney general, to continue to enforcing the marijuana laws, particularly with respect to the money laundering aspect of it. Where we see the evidence that marijuana, as I’ve noticed in cases in my own district, brings with it not only organized crime activity but great levels of violence.” — Loretta Lynch, January 28, 2015 [Emphasis added.]
But of course, once taking office, Lynch continued to uphold the Obama administration’s policy of generally allowing states to implement their own marijuana policies largely without federal interference.
This is all true, but some salient context is missing. Loretta Lynch was nominated to become Attorney General on 11/08/2014 and confirmed on 04/23/2015.
The Rohrabacher Amendment, restraining Dept. of Justice from spending funds against state-legal marijuana, was passed by the House on 05/30/2014 and signed into law 12/16/2014. It was re-authorized 12/18/2015, and again 12/12/2016.
So, positing that Sessions’ vague and anodyne comments on marijuana enforcement are similar to Lynch’s, and Lynch didn’t step up enforcement, seems irrelevant when she couldn’t step up enforcement.
The Rohrabacher Amendment expires on 04/28/2017. Speaker Ryan has made new House rules forbidding budgetary amendments on guns, abortion, LGBT, and marijuana issues, news that Angell reported back in December. Thus, there cannot be a renewal of the Rohrabacher Amendment. The House would have to pass state marijuana protection into law in its own bill by May to similarly restrain Sessions.
Furthermore, Lynch’s inaction also arose under an administration that had put into effect the Cole Memo and a president who committed to non-interference back in 2008 and has set a record for drug offender commutations. We will be hoping for similar inaction under hard-line anti-pot Sessions and all the conservative US Attorneys Trump will appoint.
The Cole Memo – Protection From Enforcement or Justification For Enforcement?
Angell also finds hope in Sessions’ comments that the tenets of the Cole Memo are “truly valuable”. I think that comes with the assumption that its eight prosecutorial priorities are a list of reasons not to go after the states, rather than a list of reasons to go after the states.
Here are the eight priorities for determining the use of scarce federal law enforcement resources to prosecute marijuana crimes in states that have legalized it:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
If Sessions wants to go after state-legal marijuana, the Cole Memo acts not as restriction but as a justification. It will not be a hard case for Sessions to make that:
- Minors are getting their hands on state-legal marijuana;
- State-legal marijuana is enriching criminal gangs;
- Marijuana is being diverted from legal states to illegal ones;
- Legal marijuana helps provide cover for the traffickers of other drugs;
- Legal home grows lead to guns and violence;
- Legalization has increased stoned driving;
- Marijuana production on public lands hasn’t abated;
- Legal marijuana is possessed and used on federal property.
Now, Angell and I can and have made arguments against all those points being the fault of legalized marijuana, and it seems similar arguments have kept Obama’s Dept. of Justice at bay even prior to the Cole Memo’s issuance on 08/29/2013, sixteen months prior to the Rohrabacher Amendment. Whether they’ll convince Sessions’ Dept. of Justice is another matter entirely.
The “Cole Memo as enforcement justification” idea isn’t mine, by the way. It’s the policy advice of the nation’s leading anti-marijuana legalization group, Project SAM:
“At the very least, the incoming Attorney General should enforce the terms of the DOJ’s own memoranda,” said Jeffrey Zinsmeister, executive vice-president and director of government relations for SAM, referring to the Cole Memo and citing a GAO report that claimed “the DOJ was not even collecting the information necessary to follow-up on its own marijuana enforcement priorities, much less enforce federal law on marijuana.”
“The DOJ could write a letter to governors in legalized states stating that any state issued licenses regulating marijuana sales is a violation of the Controlled Substances Act, and say they have 90 days to revoke licenses. It could issue a new memo to the states that have not implemented marijuana sales yet and say that they advise those states not to allow them. DOJ could also say that in the next six months they will enforce the 2013 Cole Memo and determine if states have violated its terms. It would be hard to argue that they haven’t,” Zinsmeister said.
Punting to Congress
As Barack Obama has done, Jeff Sessions, too, has given the stock answer that if we want to see any real change in federal marijuana enforcement, we have to get Congress to change marijuana’s status under the Controlled Substances Act.
“It’s not so much the attorney general’s job to decide what laws to enforce. We should do our jobs and enforce laws effectively as we’re able,” Sessions said during his hearing. “The U.S. Congress made the possession of marijuana in every state — and the distribution — an illegal act. If that’s something that’s not desired any longer, Congress should pass a law to change the rule.”
That reads to me like:
- My job will be to enforce the law;
- I should enforce the law as effectively as possible;
- The law is that marijuana is illegal;
- If you don’t want me enforcing that law, change it.
And that’s coming from a guy who said, just this last April:
SESSIONS: Mr. Wagner, the issue is bigger than the technical matter we’re discussing today, in my opinion. This is a huge, huge issue.
I was United States Attorney when President Reagan was elected and in the early Eighties half the high school seniors in America had used an illegal drug. That – over twelve, fifteen years, went to less than half that, less than 25 percent.
Would you say that was an advantage, a health advantage to young people in America? That drug use declined?
WAGNER: I will stipulate that, uh, certainly, less drug use is better.
SESSIONS: All right. What about marijuana legalization in Colorado. Did you take a public position on that?
WAGNER: I do not take public positions on political issues. I think generally it’s a bad policy for US Attorneys. We try to maintain our role as the enforcers of law, not…
SESSIONS: …I’ve been there. I know the tension on that. But in the past, US Attorneys, the Drug Czar, has opposed it. Does President Obama oppose states adopting legalization of marijuana?
WAGNER: I don’t know exactly what positions he’s taken with respect to Colorado and Washington…
SESSIONS: …Well, that’s a terrible comment. A United States Attorney who works for the President of the United States does not know whether he opposes or favors legalization of marijuana. He certainly has said some things that indicate he thinks it’s a very little problem.
But these data show that it is [a huge problem]! So you’ve got this huge increase in marijuana-related emergency room visits. This is as obvious as night following day. You make more marijuana more available, you basically say it’s not very dangerous, and the young people have a right to participate with it, and others, older people, do, too – you’re going to have more problems. Wouldn’t you agree?
WAGNER: [Skipping an exchange between WAGNER and SESSIONS over Fentanyl…]
SESSIONS: Just from my experience in dealing with this, we need to set a nationwide, we need a nationwide understanding about the problem. This is very real. Are you aware that the American Medical Association just last year issued a report that hammered this idea that marijuana is not dangerous? And they were particularly concerned about the mental impacts it has on young people? Are you familiar with that?
WAGNER: I… I… I am, I am…
SESSIONS: Do you have any doubt about it?
WAGNER: I don’t have any doubt about that, your Honor.
SESSIONS: Did the Drug Czar of the United States of America make any opinion, express any opinion to mari… to Colorado about the possible dangerous impacts of marijuana legalization in Colorado?
WAGNER: I know the Drug Czar has been quite articulate about some of the dangers associated with marijuana. […skipping ahead…] In fact, he supported an expansion…
WAGNER: … of the Hyde Act to do more enforcement in our district on marijuana.
SESSIONS: Well, um, what I wanted to say to you and to those who might be listening is it’s far more important than just the details of whether the federal prosecutors start prosecuting marijuana cases in Colorado.
Colorado was one of the leading states that started the movement to suggest that marijuana is not dangerous. And we’re going to find it, in my opinion, ripple throughout the entire American citizenry; and we’re going to see more marijuana use, and it’s not going to be good! We’re going to see more other drug use, illegal drug use, also, which is damaging.
I mean, we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s, in fact, a very real danger, you can see the accidents, traffic deaths related to marijuana jump 20 percent.
These are the kinds of things we’re going to see throughout the country. You’ll see cocaine and heroin increase more than it would have, I think, had we not talked about it.
Well, um, is there any sense that Colorado might re-evaluate what they’ve done?
WAGNER: I know that there is a lot of discussion back and forth between the US Attorney’s office and, uh, the state authorities in Colorado about issues that we’re seeing, issues that we’re concerned about. […skipping ahead…] The same is true in California…
SESSIONS: I hope you’ll speak out. You’re able to as a citizen of Colorado, to say you think this is dangerous. I work with you every day, I see the danger and damage it does, and I think the president needs to speak out. I think one of his great failures – it’s been obvious to me – his lax treatment and comments on marijuana.
It’s been obvious; it reverses 20 years, almost, of hostility to drugs, begun really when Nancy Reagan started the ‘Just Say No’ program. I made that mention when she passed away. It was a great accomplishment. We moved this country from 50 percent of high school seniors using a drug – marijuana or other drug – to less than half that.
Lives were saved. Young people’s futures were saved. And if we go back into this path, we’re going to regret it. And you’ve got to have leadership from the top. I think thew Drug Czar and the DEA leadership understand this. But I’m not sure the president does, and I’m not sure the message is getting down to the prosecutors.
Mr. Chairman, thank you for hosting this. You’ve been very astute on this issue for many, many years. You’ve led this committee on drug caucus for many, many years. We made tremendous progress. And just – I can’t tell you how concerning it is for me emotionally and personally to see the possibility that we would reverse the progress that we’ve made and let it slip away from us!
Lives will be impacted, families will be broken up, children will be damaged, because of the difficulties their parents have, and people may be psychologically impacted the rest of their lives with marijuana. And if they go on to more serious drugs, which tends to happen, and deny it if you want to, but it tends to happen, there’ll be even greater causes…
WAGNER: […skipping response about prosecutions that have gone down in California…]
SESSIONS: I would just comment that, as I was talking to somebody that has experience in this recently, it was a prevention movement. It really was so positively, so positive, and it led to this decline. The creating of knowledge that this drug is dangerous, you cannot play with it, it’s not funny, it’s not something to laugh about, and trying to send that message with clarity that good people don’t smoke marijuana. And the result of that is, to give that away, and make it socially acceptable, creates the demand, increased demand, that results in people being, ah, addicted or impacted adversely.
I just hope that we can get our thoughts together on it. I believe the Department of Justice needs to be clear and the president really needs to reassert some leadership on this. I think it’s really serious.
Maybe when President-Elect Trump made the offer to Senator Sessions to become Attorney General, he told Sessions not to do anything about the “dangerous drug” marijuana that leads to damaged children and greater hard drug abuse. Maybe when Sessions accepted the offer, he decided this “really serious” “very real” “huge, huge issue” could be ignored and his Dept. of Justice shouldn’t be the “grown-ups in charge of Washington” sending the message that “good people don’t smoke marijuana.”
I mean, eighteen months ago, the idea of President Donald Trump itself was a laughable impossibility, so anything’s possible.